UK SUDDENLY ABOUT TO IMPLEMENT EU COPYRIGHT DIRECTIVE

Unless there is a revolution within the next few weeks, the Copyright and Related Rights Regulations 2003 (2003 No. 2498) will become law in the United Kingdom on 31 October. These Regulations represent the British attempt to implement Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society. Most of the Directive’s contents are optional, which means that EU Member States’ copyright laws may actually be more diverse after the Directive is implemented than it was before.

The Regulation is unintelligible unless you also have a current copy of the Copyright, Designs and Patents Act 1988 on your lap, since all it does is list a multitude of amendments to it. Some are big, some are small. All are potentially important if you want to avoid liability for infringement.
The main changes are as follows:

* One of the types of works protected by copyright in the United Kingdom is a “cable programme”. This concept, introduced when cable TV was first recognised as being economically significant in its own right, is now being subsumed within the new definition of a “broadcast”. In legal terms, Cable TV has thus become the first fatality of technological convergence.

* The infringing act formerly known as “broadcasting or inclusion in a cable programme service” (s.20) now amended to the “communication to the public” of any work.

* A new “marking available” right is introduced (s.182CA) in respect of making a performer’s performance available to the public by electronic transmission even if the public can choose when to gain access to it. This is a real right which is not subject to the principle of “help yourself and pay equitable remuneration”.

* The making of a temporary copy of a literary work (other than a computer program or a database) or of a dramatic, musical or artistic work, a typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental. This only applies when the transient copy is an integral and essential part of a technological process that facilitates (a) a transmission of the work in a network between third parties by an intermediary or (b) a lawful use of the work. Additionally, the temporary copy must have no independent economic significance (s.28A).

* The old “fair dealing for research and private study” provision of s.29(1) has been trimmed down. Now, the fair dealing is only for “research for a non-commercial purpose” and must be accompanied by a sufficient acknowledgement, where practicable. However, a new s.29(1C) confirms that “fair dealing with a literary, dramatic, musical or artistic work for the purposes of private study does not infringe any copyright in the work".

* S.30 will now provide that “fair dealing” for the purposes of criticism or review will apply only to works made available to the public, thus depriving law professors of one of their staple questions for discussion among copyright students.

* A new s.50BA provides that it is not an infringement of copyright for a lawful user of a computer program to observe, study or test the functioning it in order to determine the ideas and principles which underlie any element of the program, if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do. This freedom cannot be taken away by the terms of a software licence or other contract.

* A new s. 70(2) makes your lawful time-shifted copies of broadcast programmes unlawful if you subsequently deal with them commercially.

* There are extensive new provisions (from s.296 to s.296ZG) dealing with circumvention of anti-copying devices for computer programs and other works, for criminal sanctions, court powers and search warrants, as well as the protection of rights management information.
* If you are an Internet Service Provider, watch out for ss97A and 191JA, which gives the courts power to grant injunctions against any ISP that has actual knowledge of copyright infringement or of the infringement of a performer’s rights.

* A new s.101A makes infringements actionable even by a non-exclusive licensee (with the express permission of copyright owner), if the allegedly infringing acts are directly related to the prior licensed acts of licensees.

The IPKat marvels at the magnitude of the Copyright and Related Rights Regulations 2003 which, in true British fashion, are a good deal longer than the Directive itself. He is relieved to see that fair dealing for the purpose of private study has remained unscathed, though he wonders what sort of damages the courts might award in respect of the making of a single unfair copy of a work for the soon-to-be infringing purposes of commercial research.

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